Alhaja Bintu Sunmonu V. Alhaji Bello Ajani Sapo (2001)

LawGlobal-Hub Lead Judgment Report

SUNDAY AKINOLA AKINTAN, J.C.A.

This is an appeal from the judgment of Fatade, J. delivered on 16th May, 1995, at Oshogbo High Court in Osun State. The appellant was the plaintiff at the lower court while the respondent was the defendant. The plaintiff’s claim as set out in paragraph 31 of the statement of claim is as follows:-

(i) A declaration that the plaintiff is the person entitled to a statutory right of occupancy over a piece or parcel of farmland situate, lying and being at Igbo-Ifa area, Ofatedo and verged RED on survey plan No. OS/D/0579/93/001 consisting of an area of approximately 16.135 Hectares and bounded as follows:-

On the Northern side by Jimoh Ashola and Oseni Durojaiye’s landed property;

On the Western side by Madam Pate Alimotu’s landed property;

On the Southern side by Adeleke Asunmo’s landed property

On the Eastern side by Oseni Durojaiye’s land property.

(ii) Ten thousand naira (N10,000.00) as damages for trespass (which trespass still continues) committed by the defendant, his servants, agents and privies.

(iii) Perpetual injunction restraining the defendant, his agents, servants, privies from further trespass on the said parcel of land.

Pleadings were filed and exchanged. The case thereafter, went for trial before the afore-mention learned trial Judge, Fatade, J. At the trial, the appellant, as plaintiff, gave evidence. Six other witnesses also gave evidence in support of the plaintiff’s claim, The respondent, as defendant, also gave evidence and called three other witnesses in support of the case for the defence.

The dispute arose over a parcel of land at Igbo-Ifa in Ofatedo area, of Egbedore Local Government of Osun State. The plaintiff tendered at the trial a survey plan of the land, she was claiming as Exh. P1. Her entire land is edged red on the survey plan. It is 16.135 hectares. But the area alleged to have been trespassed on by the respondent, is edged green on the same survey plan and it is said to be 4.124 hectares. The appellant, as plaintiff, filed a statement of claim and a reply to statement of defence. The respondent filed a statement of defence.

The plaintiff pleaded as follows in paragraph 7 to 17 and 20 to 24 of her statement of claim as follows:

7. The whole land of the plaintiff is bounded as follows:

On the Northern side by Jimoh Ashola & Oseni Durojaiye landed properties.

On the Western side by Madam Pate Alimotu landed property;

On the Southern side by Adeleke Asunmo’s landed property;

On the Eastern side by Oseni Durojaiye’s land property,

8. The land in dispute forms part of a large piece or parcel of land belonging to the plaintiff by inheritance from her father Sunmonu.
9. Amongst the features on the land in dispute are cocoa trees, kolonut trees and palm trees. Part of the land is cultivated by the plaintiff, and his brother by name Yaya Sunmonu where they plant maize, cassava and yams.
10. During the inter-tribal wars between Ibadan and Ilorin, Oba Adegboye Atoloye, who was then the Olofa of Offa in Kwara State led his people from Offa (Kwara State) and settled at a place known as Ita-Olokan area, Osogbo (Osun State). When Ita-Olokan became congested, Oba Adegboye Atoloye requested the then Olubadan who was the overlord, to find a new settlement for the Oba and his subjects.
11. The then Olubadan dispatched Balogun Osungbekun from Ibadan to allocate a new settlement for the Oba and his people from Offa (Kwara State).
12. The said Balogun Osungbekun allocated to Oba Adegboye Atoloye a new settlement for himself and his people who migrated with him from Offa. Thus, the present site of Ofatedo in Osun State was allocated the Oba for settlement, which include the land claimed by the plaintiff verged RED. Oba Adegboye Atoloye in turn allocated lands for farming and building purposes to all this followers from Offa including the ancestor of the plaintiff.
13. The land in dispute verged GREEN and the entire land claimed by the plaintiff verged RED was the portion of land allocated to the plaintiff’s ancestor, called Fadairo.
14. The said Fadairo took possession of the land and started to cultivate it, planting economic trees such as cocoa trees, palm trees, and kolanut trees and subsistent crops like yams, cocoyams, maize and cassava.
15. Fadairo begat Taiwo and and Taiwo begat Summonu, the father of the plaintiff.
16. Fadairo succeeded his father on the land verged RED and he too cultivated, the land plainting more cocoa trees, kolanut trees, and palm trees. He also planted maize, cassava, yams, cocoyam. He too farmed on the land without any disturbance from any one until his death.
17. After his death, Fadairo was succeeded by Taiwo who also farmed on the land verged RED including the land in dispute. Taiwo died and was succeeded on the land, Summonu the father of the plaintiff.
18. After the death of Sunmonu, the plaintiff and his brother & sister succeeded to the farm land verged RED including the land in dispute harvesting the cocoa and kolanuts and the palm fruits.
19. The plaintiff and her brother Yaya Asunmo were never disturbed on the said land, until sometime in 1985.
20. The defendant brought a caterpillar to clear part of land in dispute verged GREEN, thereby destroying many cocoa trees, kolanut trees and palm trees.
21. The plaintiff and her brother protested and chased the workers away from the land.
22. The defendant about five years later, came back to the land verged GREEN with a view to selling them to purchasers. The idea was resented by the plaintiff.

The respondent, as defendant denied the plaintiff’s claim in his statement of defence. He pleaded in paragraph 2 of his statement of defence, that he was defending the action in a representative capacity on behalf of Sapo family. He went further to plead that the land in dispute formed part of a large parcel of land belonging to the Sapo family. He also pleaded his family’s root of title as follows in paragraphs 43 to 46 of the statement of defence:

43. Obalufon was the first Oludo of Ido Osun and he was the father of Enukoko, who was also an Oludo of Ido Osun, Osun State.
44. Obalufon migrated from Ile-Ife and settled at Ido Osun, Osun State and he occupied all the land surrounding Ido-Osun including Igbo-Ifa in Ido Osun.
45. Obalufon was the founder of Ido Osun who begat Enukoko, Enukoko begat Adenigi, Adenigi begat Adeagbo who was the father of Sapo. Sapo is the father of the defendant.
46. The defendant says that the land granted to Sapo from Enukoko’s land is called Igbo Ifa in Ido Osun, which he and his Sapo family occupy and have been using for cash and economic crops from time immemorial. It is a small portion of this land inside Sapo’s land that the plaintiff is now claiming.

The defendant also pleaded how the plaintiff’s father got on to a portion of the land in paragraphs 24, 25 and 30 of the statement of defence as follows:

24. The defendant says that it was one Fadipe from Offa, Kwara State that was allocated land temporarily at Igbo-Ifa, Ido Osun for subsistence farming only to plant yams, cassava, maize by his father Sapo about 70 years ago.
25. The defendant says that the father of the plaintiff knew and regarded himself as temporary tenant of the defendant’s chief tenant Fadipe who used to give yams as Isakole (Yoruba native tribute) to the defendant, his father and his Sapo family through Fadipe. After the death of Fadipe it was Lamidi Adeyi, who use to pay the Isakole to him.
26. The defendant says that it was Fadipe who invited the people whom the plaintiff called her boundary men and women and her father Sunmonu to come from Offa, Kwara State, to farm in the area where Fadipe was farming at Igbo- Ifa, Ida Osun.

As already stated earlier above, the plaintiff testified at the trial and six other witnesses gave evidence in support of his claim. The first of the witnesses that testified in support of the plaintiff’s claim was Yekini Garuba Oladimeji (P.W.1), the surveyor employed by the plaintiff to carry out a survey of the land in dispute. He tendered the survey plan as Exh. P1. Four of the witnesses (P.W.2, P.W.3, P.W.4 and P.W.5) were the plaintiff’s boundary men as shown on the survey plan, Exh. P1. They are respectively Alimotu Pate Bello (P.W.2); Jimoh Isola (P.W.3); Oseni Durojaiye (P.W.4) and Adeleke Latifu Asunmo (P.W.5). Each of the four witnesses confirmed that he had farmland in the area and that his land shared a boundary with that of the plaintiff. Each of them also claimed that the plaintiff’s family as well as their respective families, had been farming on their respective portions of the land since their ancestors settled on the land as pleaded by the plaintiff, and that no one had disturbed them on the land until the incidents that led to the plaintiff instituting the present action. They all denied that any of them was a tenant of the defendant’s family.

The plaintiff gave evidence of how her ancestors came on to the land in line with her pleadings and how about six years before she instituted the action, the defendant forcefully entered part of her family land in question and started to clear it with bull-dozer. That incident led to the institution of the action. The plaintiff also told the court that, apart from growing food crops on the land, her family also planted cocoa, palm trees, kolanut and other economic trees on the land. She denied that there were buildings on the land. Her survey plan (Exh. P1) confirms her evidence in this respect in that trees said to be cocoa, kolanut and palm trees are shown on the survey plan. But no buildings are shown thereon. Each of the witnesses was duly cross-examined by learned Counsel for the defendant.

The sixth witness called by the plaintiff is Oba Abudulai Okunloye (P.W.6), the Olofa of Ofatedo. The witness told the court that he was the natural ruler of Ofatedo. He confirmed the averment in the plaintiff’s statement of claim regarding how the plaintiff’s ancestors came on to the land. He also confirmed that the land in dispute belonged to the plaintiff’s family.

The case for the defence was opened with the evidence of the surveyor, Oluyemi Ayorinde Agboola (D.W.1). He tendered the survey plan he made at the request of the defendant/respondent as Exh. D1. He told the court under cross-examination, inter alia, that:

“The Igbo-Ifa on Exh. D1 has not been developed. Straw and some trees surround the area. One baba tree is prominent on the land. All other economic trees are of no consequence to my plan hence I do not show them on it.”

Apart from the surveyor, the defendant also gave evidence in support of his case along with two other witnesses. The defendant told the court in his evidence before the court that the land in dispute formed part of his family land which his family inherited from Oba Iddo Osun. He said further that Sapo inherited it from Obalufon, his ancestor. He then said inter alia as follows:

“Obalufon migrated from Ile-Ife. Obalufon begat Lufade who in turn begat Enukoko. Enukoko begat Adeniji who begat Adeagbo. Adeagbo begat Sapo. Sapo begat me. We got to the land through Sapo. Our ancestors migrated from Ile-Ife and settled at Ido Osun. The Igbo-Ifa was in the name of Sapo…………Our boundary men are Woru family land, Adelabu Oba Iddo Osun farmland at Eleripo stream, Offa land and Adelatu Oba Iddo Osun on the 4th side and Dada Estate.”

The defendant also told the court that there are many houses on the land and that the plaintiff’s father, Sunmonu Adeyi, got onto the land through one of their tenants and that the man was on the land for only five years before he died. He denied that Igbo Ifa was part of Ofatedo.

Lamidi Adeyi Abifarin (D.W.2) was one of the two witnesses that testified for the defence. The witness told the court that he farmed on part of the land and that he was a tenant of the defendant’s family on the said land. He said further that Sunmonu Adeyi, the plaintiff’s father got on to the land through him. He said that the man farmed on the land before he died about 5 years after he started farming on the land. He also said that all the tenants used to contribute yam as Isakole through him every year. The witness gave the names of Alimotu Bello (P.W.2), Jimo Isola (P.W.3) and Oseni Durojaiye (P.W.4) as others granted land by his own father on behalf of the defendant’s family and that they farmed on the portion of land granted them as tenants. He said in answer put to him under cross-examination that the plaintiff’s father could not give him any Isakole for using the land before he died.

The third defence witness is Oba Jimo Oyeyemi, the Oludo of Ida Osun (D.W.2). He is the natural ruler of Iddo Osun. He told the court that Igbo Ifa is near Ida Osun.

At the close of the case for the defence, learned counsel for each of the parties addressed the court. The learned trial Judge, thereafter delivered his reserved judgment on 2nd May, 1995. In it, he held that the plaintiff failed to prove her claim. He accordingly dismissed the plaintiff’s case with N500 costs in favour of the defendant. The plaintiff was dissatisfied with the verdict. She has therefore appealed against it to this court. Three original grounds of appeal were filed against the verdict. But with leave of this court, the three original grounds were replaced with seven new grounds of appeal.

The parties filed their briefs of argument in this court. The appellant formulated the following three issues as arising for determination in the appeal:

(i) Issue 1, arising from the first five grounds of appeal is framed thus:

Whether the decision is against the weight of evidence and whether the plaintiff’s case was more probable and in accord with the standard of proof required at law, for a claim to a right of occupancy over the land in dispute?

(ii) Issue 2 arising from the sixth ground of appeal goes thus:

Whether the learned trial Judge was right in law when he believed and accepted the evidence of D.W.2 as to how the plaintiff came to be on the land in dispute when the said evidence (of DW2), was contrary to the defendant’s pleadings and as such went to no issue?

(iii) Issue 3 arising from the seventh ground of appeal is:

Whether the trial Judge was right in law when he dismissed the plaintiff’s claims for trespass and injunction?

The respondent on the other hand, raised five issues in his brief. As the five issues are mere repetition of the 3 issues formulated in the appellant’s brief, I therefore do not consider it necessary to reproduce the 5 issues formulated in the respondent’s brief. The appeal will therefore be considered on the basis of the issues as formulated in the appellant’s brief.

Although three issues are formulated in the appellant’s brief, only two issues are in fact seriously argued in the brief. In fact issues I and 3, are argued together as issue No. I, while issue 2 is argued separately as issue 2.

It is submitted in respect of issue 1, that the decision of the learned trial Judge was premised on some specified findings of facts which were either not pleaded or not given in evidence at the trial. Seven of such wrong findings of facts in question are set out in the brief. They are: (I) the court’s observation that the defendant debunked the plaintiff’s case by his comprehensive survey plan (Exh. D1) which subsumed the plaintiff’s land;

(2) that the defendant’s case was more probable because three of the plaintiff’s witnesses were either mercilessly crushed to submission under cross-examination;

(3) that the traditional history produced by the plaintiff appeared to be self-contradictory and fell short of credibility;

(4) that the court was more convinced by recent acts of ownership of the defendant on the land in dispute e.g. by the sales made to purchasers out of the land in dispute who had peacefully built on the land;

(5) that the defendant had successfully challenged the plaintiff’s attempt to show that there were economic trees on the land in dispute;

(6) that the plaintiff had failed to establish by credible evidence her grip on the land in recent times; and (7) that the defendant had shown how the plaintiff’s father got to the land – i.e. as a tenant through D.W.2.

The observation of the learned trial Judge that the defendant’s survey plan (Exh. D1) subsumed the plaintiff’s land in dispute and thereby carne to the conclusion that the land in dispute was by law part of the defendant’s land, is said to be erroneous. That finding is said to be perverse. This is because the plaintiff’s survey plan (Exh. P1) merely shows the plaintiff’s land in the area, marked out the exact portion trespassed on and shows the landed properties of her boundary men.

It is further argued that it was totally wrong of the learned trial Judge to reject the evidence of the plaintiff and those of her boundary-men who testified as to their land holdings around the plaintiff’s landed property. On the other hand, it is argued that it was wrong of the learned trial Judge to have accepted the evidence led by the defence and based on his survey plan (Exh. D1) which merely shows a wide expanse of land and showing some names of boundary-men, none of whom was called to testify as to whether or not they in fact had any land as shown on the survey plan. Similarly, the failure of the defendant to call as witnesses those he claimed to have granted land in the area and who had built thereon is said to be fatal to the case for the defence. So also is the fact that nowhere in his survey plan (Exh D1) is any house shown as belonging to anybody he claimed to have been granted land for building purposes. The court’s conclusion that the defence has made out a better case, is therefore said to be totally flawed and amounts to a miscarriage of justice.

The findings of facts made about the evidence of traditional history adduced to the extent that the court had to prefer that of the defence is also flawed. It is submitted that the learned trial Judge did not make a correct appraisal of the evidence led before him when he held, that the plaintiff claimed that “it was Balogun Osungbekun from Ibadan who settled him on the land. It has not been explained to the satisfaction of the court how Balogun Osungbekun came to own the land”.

This is said not to be the evidence led at the trial. Rather, what the plaintiff pleaded and gave in evidence was that during the inter-tribal wars between Ibadan and Ilorin, Oba Adegboye Atoloye, then the Olofa of Offa led his people from Offa and settled at a place known as Ita-Olokun area of Oshogbo. When Ita-Olokun became congested, Oba Atoloye requested the then Olubadan for land where he could settle his people. Olubadan in reply to the request, dispatched Balogun Osungbekun from Ibadan to allocate a new settlement for Oba Atoloye and his people. The said Balogun Osungbekun acting on the Olubadan’s instruction to him, went and allocated to Oba Atoloye a new settlement for himself and his people at a place now known as Ofatedo, in Osun State. Oba Atoloye in turn allocated land for farming and building purposes to all his followers from Offa, the plaintiff’s ancestor was among the Oba Atoloye’s people who got allocations of parcels of land and the land in dispute was part of the land allocated to the plaintiff’s ancestors.

The learned trial Judge is said to have misconstrued the above evidence led by the plaintiff in support of her claim when he found as a fact that:

“…The traditional history produced in evidence by the plaintiff and her witnesses appears to be self contradictory and falls short of credibility. Their claim was that it was Balogun Osungbekun from Ibadan who settled them on the land. It has not been explained to the satisfaction of the court how Balogun Osungbekun came to own the land at Ofatedo near Iddo-Osun”.”

This is said to be a complete mis-statement of the evidence given by the plaintiff and therefore amounts to a grave misdirection.

On issue 2 the learned trial Judge is said to have acted wrongly when he accepted and believed the evidence of Lamidi Adeyi Abifarin (DW2) that it was that witness that brought the plaintiff’s father Sunmonu Adeyi, to the land in dispute as a tenant of the defendant’s father. It is submitted that such evidence should have been ignored since it was not what the defendant pleaded. Reference is made to paragraphs 27 and 30, of the statement of defence, already reproduced above, where the defendant pleaded that it was Fadipe “who invited some people, including the plaintiff’s father, Sunmonu Adeyi to farm with him at Igbo-Ifa.” Among the people pleaded as invited to the land by the same Fadipe were people the plaintiff pleaded as her boundary men on the land.

It is argued that Fadipe was not called as a witness. Rather, it was Lamidi Adeyi Abifarin (DW2) who testified to the effect that it was he (DW2) that invited the plaintiff’s father to the land as tenant of the defendant’s family. His evidence is said to be inadmissible in law as it was not pleaded.

On issue 3, it is submitted that the contention of the learned trial Judge that the plaintiff failed to prove exclusive possession and destruction of her economic trees on the land is untenable. This is because paragraph 22 of the statement of claim where the plaintiff pleaded that the defendant took a land clearing machine to the land to clear it and thereby destroyed many cocoa, kolanut and palm trees, was not denied. It is submitted that that conclusion of the learned Judge was reached without a proper appraisal of the evidence led by the appellant in support of her case.

It is submitted in reply in the respondent’s brief that the learned trial Judge properly evaluated the evidence placed before him and that he infact came to a right decision. Reference is made to the defendant’s survey plan (Exh. D1) and it is submitted that the learned Judge was right in holding that the said survey plan was more comprehensive than that of the defendant.

The main issues raised in the appeal are whether the findings of facts made by the learned trial Judge are supported by the evidence placed before the court and whether the conclusions reached by him can be justified having regard to the admissible evidence placed before the court. The law is settled that although it is no business of an appeal court to substitute its view of the evidence for that of the trial Judge who has the singular opportunity of listening to the witnesses and watching them, the appeal court could, however, in the interest of justice, disturb, alter, reverse or set aside the lower court’s findings of facts under certain circumstances. Among such circumstances are:-

(1) where the trial court fails to evaluate the evidence adduced before it; or

(2) the trial court has drawn wrong inferences from the primary facts found; or

(3) the facts found by the trial court are wrongfully applied to the circumstances of the case or the findings of facts are not reasonably justified or supported by the credible evidence given in the case: See Akinola v. Oluwo (1962) 1 SCNLR 352; Federal Commissioner for Works & Housing v. Lababedi (1977) 11-12 SC 15; Kuforiji v. V.Y.B. (Nig) Ltd. (1981) 6-7 SC 40; and Ezeafulukwe v. John Holt Ltd. (1996) 2 NWLR (pt. 432) 511.

Similarly, the law is settled that an appellate court is in the same position as the trial court in relation to what conclusion or inference to draw from primary findings once any of the conditions for such interference, as already enunciated above exists: See Ehimare v. Emhonyon (1985) 1 NWLR (Pt. 2) 177; Metalimpex v. A.G. Leventis (Nig.) Ltd. (1976) 2 S.C. 91; and Runsewe v. Odutola (1996) 4 NWLR (Pt. 441) 143.

Applying the law as declared above to the facts of the instant case, it is clear from the findings of facts made by the learned trial Judge that he did not properly evaluate the evidence placed before him and that some of the findings of facts he made were wrongfully applied to the case before him. Such omissions have therefore created an avenue for this court to interfere with his findings of facts and application of the facts to the case. To begin with his findings of facts made in respect of the plaintiff’s survey plan (Exh. P1) where the learned trial Judge found as a fact that the defendant debunked the plaintiff’s case by his comprehensive survey plan (Exh. D1) which subsumed the plaintiff’s land, there was totally no evidence to support or justify such a finding of fact or conclusion from the evidence tendered before the court. The true position was that the plaintiff produced and tendered a survey plan of his land in the area and marked out the area in dispute between her and the defendant, she also showed the surrounding landed properties of her boundary men around her entire land, The defendant, on the other hand, produced and tendered his own survey plan (Exh. D1), In it, apart from showing the land in dispute, it also shows a larger area which was described in the plaintiff’s plan (Exh. P1) as those belonging to her boundary men, The plan (Exh. D1) also contain names of boundary men to the land claimed by the defendant. The defendant’s land as shown on his survey plan (Exh. D1) shares boundary with the plaintiff’s land on three sides.

But while each of the boundary men named on the plaintiff’s survey plan (Exh. P1) testified at the trial and confirmed sharing common boundary with the plaintiff’s land claiming to have been on the land for over 80 years, and denying being tenants of the defendant, none of the people shown on the defendant’s survey plan (Exh. D1) as sharing boundary with the defendants, was called as witness to confirm the said defendant’s claim. No reason was given for the failure to call any of the said boundary men, It is therefore ridiculous for the court to find as a fact that the defendant had made out a better case than that of the plaintiff in this regard.

Again the finding of fact that the defendant’s case was more probable because three of the plaintiff’s witnesses were “mercilessly crushed to submission under cross-examination” is also not supported by the printed record. As I have already mentioned above, the four plaintiff’s boundary men that gave evidence at the trial are PW2, PW3, PW4 and PW5, None of them was subjected to any serious cross-examination. There is nothing on the printed record to show that their claim to have been on their respective portion of the land which spanned over three generations or that each of them shared a common root of title were seriously challenged under cross-examination. It follows therefore that the court’s finding that the witnesses were mercilessly crushed to submission under cross-examination was totally baseless.

The court’s view about the traditional history produced by the plaintiff was self-contradictory and fell short of credibility, was also based on wrong premise. The learned trial Judge based his said finding of fact on the wrong premise that it was Balogun Osungbekun that made the grant of the land to the plaintiff’s ancestors, But the fact pleaded and given in evidence was that Olubadan of Ibadan sent Balogun Osungbekun to go and carve out a place, where Oba Adegboye Atoloye could settle along with his people after the said Oba had approached the Olubadan for such a grant from the land which was then under the control of Olubadan of Ibadan. No contrary evidence was led to the effect that the area was at the material time not under the control of the Olubadan of Ibadan.

Oba Abudulai Ogunleye (PW6), the Olofa of Ofatedo confirmed the plaintiff’s story in this respect. In fact Oba Jimoh Oyeyemi (DW3) the Olude of Ido-Osun told the court that Ido-Osun’s land and Igbo Ifa are contiguous. There is therefore totally no basis for the rejection by the court of the traditional evidence tendered by the plaintiff.

Similarly, the finding of fact made by the learned trial Judge to the effect that “the court was more convinced by recent acts of ownership of the defendant on the land in dispute, e.g, by the sales made to purchasers out of the land in dispute who had peacefully built on the land” was also not supported by the evidence placed before the court. The evidence tendered at the trial was that the plaintiff and each of the four boundary men on the land had been on the land for over 80 years without any disturbance until the defendant came to disturb them about six years before they gave their evidence and that his said act formed the basis of the present action. Similarly although the defendant told the court that he made sales of plots out of the land to some people who had built on it, that story was not supported by the survey plan he tendered (Exh. D1) because no building was shown as existing on any part of the land shown on his said survey plan (Exh. D1). The defendant also failed to call any of such purchasers to give evidence and no reason was given for failure to do so. There is therefore totally no basis for the Judge coming to the conclusion he reached in this respect.

The finding of fact by the learned trial Judge to the effect that the defendant had shown how the plaintiff’s father got to the land, i.e. as a tenant through Lamidi Adeyi Abifarin (DW2) is also ill founded and baseless. The defendant had pleaded in paragraphs 24 and 25 of his statement of defence that it was one Fadipe that his family allocated land for farming purposes only out of their land and that it was the same Fadipe that brought the plaintiff’s father on to the portion of the land as a tenant. No where in the defendant’s pleadings was the name of Lamidi Adeyi Abifarin (DW2) mentioned. Again when the plaintiff and each of his four boundary men aforementioned gave evidence, the name of DW2 was never suggested to any of them as the person who invited the plaintiff or any of the boundary men to the land as tenant. It is trite law that evidence not pleaded is inadmissible and goes to no issue. Such evidence, if mistakingly taken, ought to and should in fact be ignored by the trial Judge in coming to his conclusion in the matter before him.

See National Investment and Properties Co. Ltd. v. Thompson Organisation Ltd. (1969) NMLR 99; Woluchem v. Gudi (1981) 5 SC 291; and Adenuga v. L.T.D. (1950) 13 WACA 125. It follows therefore that the learned Judge came to a wrong conclusion when he found that it was DW2 that brought the plaintiff’s father to the land as tenant since such finding of fact was based on unpleaded evidence.

It is settled that there are five different ways or methods of proving ownership of land in dispute. These are (1) proof by traditional evidence; (2) proof by production of documents of title duly authenticated, unless they are documents 20 years or more years old and produced from proper custody; (3) proof by acts of ownership such as selling, leasing, renting out all or any part of the land or farming on it or on a portion thereof, extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the persons exercising such proprietary acts, are the true owners of the land; (4) proof by acts of long possession and enjoyment of the land which prima facie may be evidence of ownership; and (5) proof by possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute:

See Idundun v. Okumagba (1976) 9-10 SC 227; Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511; Anyanwu v. Mbara (1992) 5 NWLR (Pt. 242) 386; and Onwugbufor v. Okoye (1996) 1 NWLR (Pt. 424) 252.

The appellant, as plaintiff, has led sufficient credible evidence at the trial to prove three of the five ways set out above. The three are proof by traditional evidence, proof by acts of ownership and proof by acts of long possession. The respondent, on the other hand not only failed to rebut the evidence led in support of the plaintiff’s case, he totally failed to establish his title to the land in dispute through any of the afore-mentioned five ways of proving title to land. In the result, it was totally wrong of the learned trial Judge to have refused to grant the plaintiff’s claim. The dismissal of the plaintiff’s case therefore is totally erroneous and should not be allowed to stand. There is therefore merit in the appeal and I accordingly allow it. The judgment and all orders made by the lower court in the case, including that on costs are hereby set aside. In their place, I hereby substitute an order granting the plaintiff’s claims. To that end,

(1) It is hereby declared that the plaintiff is the person entitled to a statutory right of occupancy over the piece or parcel of farm land situate, lying and being at Igbo-Ifa area of Ofatedo and verged red on survey plan No. OS/D/0579/93/001 and admitted as Exh. P1 at the trial in the lower court.

(2) The appellant is awarded N10,000.00 as damages for trespass against the respondent for the trespass committed by the respondent, his servants, agents and privies; and

(3) The respondent, his agent, servants and privies are restrained from committing, further trespass on the said land. The appellant is entitled to his costs at the lower court which I hereby assess at N2,000 and his costs in this court which I assess at N8,000.

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Other Citations: (2001)LCN/0933(CA)